DISTRIBUTION AGREEMENT
THIS AGREEMENT is made this 28th day of February, 1997 between INVESCO
DYNAMICS FUND, INC., a Maryland corporation (the "Fund"), and INVESCO FUNDS
GROUP, INC., a Delaware corporation (the "Underwriter").
W I T N E S S E T H:
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "Investment Company Act"), as a diversified, open-end management
investment company and currently has one class of shares (the "Shares")
representing an interest in a portfolio of investments, and it is in the
interest of the Fund to offer the Shares for sale continuously; and
WHEREAS, the Underwriter is engaged in the business of selling shares of
investment companies either directly to investors or through other securities
dealers; and
WHEREAS, the Fund and the Underwriter wish to enter into an agreement with
each other with respect to the continuous offering of the Shares in order to
promote growth of the Fund and facilitate the distribution of the Shares;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints the Underwriter its agent for the
distribution of Shares in jurisdictions wherein such Shares legally
may be offered for sale; provided, however, that the Fund in its
absolute discretion may (a) issue or sell Shares directly to
purchasers, or (b) issue or sell Shares to the shareholders of any
other investment company, for which the Underwriter or any affiliate
thereof shall act as exclusive distributor, who wish to exchange all
or a portion of their investment in shares of such other investment
company for the Shares of the Fund. Notwithstanding any other
provision hereof, the Fund may terminate, suspend or withdraw the
offering of Shares whenever, in its sole discretion, it deems such
action to be desirable. The Fund reserves the right to reject any
subscription in whole or in part for any reason.
2. The Underwriter hereby agrees to serve as agent for the
distribution of the Shares and agrees that it will use its best
efforts with reasonable promptness to sell such part of the
authorized Shares remaining unissued as from time to time shall be
effectively registered under the Securities Act of 1933, as amended
(the "1933 Act"), at such prices and on such terms as hereinafter
set forth, all subject to applicable federal and state securities
laws and regulations. Nothing herein shall be construed to prohibit
the Underwriter from engaging in other related or unrelated
businesses.
3. In addition to serving as the Fund's agent in the
distribution of the Shares, the Underwriter shall also provide to
the holders of the Shares certain maintenance, support or similar
services ("Shareholder Services"). Such services shall include,
without limitation, answering routine shareholder inquiries
regarding the Fund, assisting shareholders in considering whether to
change dividend options and helping to effectuate such changes,
arranging for bank wires, and providing such other services as the
Fund may reasonably request from time to time. It is expressly
understood that the Underwriter or the Fund may enter into one or
more agreements with third parties pursuant to which such third
parties may provide the Shareholder Services provided for in this
paragraph. Nothing herein shall be construed to impose upon the
Underwriter any duty or expense in connection with the services of
any registrar, transfer agent or custodian appointed by the Fund,
the computation of the asset value or offering price of Shares, the
preparation and distribution of notices of meetings, proxy
soliciting material, annual and periodic reports, dividends and
dividend notices, or any other responsibility of the Fund.
4. Except as otherwise specifically provided for in this
Agreement, the Underwriter shall sell the Shares directly to
purchasers, or through qualified broker-dealers or others, in such
manner, not inconsistent with the provisions hereof and the then
effective Registration Statement of the Fund under the 1933 Act (the
"Registration Statement") and related Prospectus (the "Prospectus")
and Statement of Additional Information ("SAI") of the Fund as the
Underwriter may determine from time to time; provided that no
broker-dealer or other person shall be appointed or authorized to
act as agent of the Fund without the prior consent of the directors
(the "Directors") of the Fund. The Underwriter will require each
broker-dealer to conform to the provisions hereof and of the
Registration Statement (and related Prospectus and SAI) at the time
in effect under the 1933 Act with respect to the public offering
price of the Shares. The Fund will have no obligation to pay any
commissions or other remuneration to such broker-dealers.
5. The Shares offered for sale or sold by the Underwriter
shall be offered or sold at the net asset value per share determined
in accordance with the then current Prospectus and/or SAI relating
to the sale of the Shares except as departure from such prices shall
be permitted by the then current Prospectus and/or SAI of the Fund,
in accordance with applicable rules and regulations of the
Securities and Exchange Commission. The price the Fund shall receive
for the Shares purchased from the Fund shall be the net asset value
per share of such Share, determined in accordance with the
Prospectus and/or SAI applicable to the sale of the Shares.
6. Except as may be otherwise agreed to by the Fund, the
Underwriter shall be responsible for issuing and delivering such
confirmations of sales made by it pursuant to this Agreement as may
be required; provided, however, that the Underwriter or the Fund may
utilize the services of other persons or entities believed by it to
be competent to perform such functions. Shares shall be registered
on the transfer books of the Fund in such names and denominations as
the Underwriter may specify.
7. The Fund will execute any and all documents and furnish any
and all information which may be reasonably necessary in connection
with the qualification of the Shares for sale (including the
qualification of the Fund as a broker-dealer where necessary or
advisable) in such states as the Underwriter may reasonably request
(it being understood that the Fund shall not be required without its
consent to comply with any requirement which in the opinion of the
Directors of the Fund is unduly burdensome). The Underwriter, at its
own expense, will effect all qualifications of itself as broker or
dealer, or otherwise, under all applicable state or Federal laws
required in order that the Shares may be sold in such states or
jurisdictions as the Fund may reasonably request.
8. The Fund shall prepare and furnish to the Underwriter from
time to time the most recent form of the Prospectus and/or SAI of
the Fund. The Fund authorizes the Underwriter to use the Prospectus
and/or SAI, in the forms furnished to the Underwriter from time to
time, in connection with the sale of the Shares of the Fund. The
Fund will furnish to the Underwriter from time to time such
information with respect to the Fund and the Shares as the
Underwriter may reasonably request for use in connection with the
sale of the Shares. The Underwriter agrees that it will not use or
distribute or authorize the use, distribution or dissemination by
broker-dealers or others in connection with the sale of the Shares
any statements, other than those contained in a current Prospectus
and/or SAI of the Fund except such supplemental literature or
advertising as shall be lawful under Federal and state securities
laws and regulations, and that it will promptly furnish the Fund
with copies of all such material.
9. The Underwriter will not make, or authorize any broker-
dealers or others to make any short sales of the Shares of the Fund
or otherwise make any sales of the Shares unless such sales are made
in accordance with a then current Prospectus and/or SAI relating to
the sale of the applicable Shares.
10. The Underwriter, as agent of and for the account of the
Fund, may cause the redemption or repurchase of the Shares at such
prices and upon such terms and conditions as shall be specified in a
then current Prospectus and/or SAI. In selling, redeeming or
repurchasing the Shares for the account of the Fund, the Underwriter
will in all respects conform to the requirements of all state and
federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., relating to such sale,
redemption or repurchase, as the case may be. The Underwriter will
observe and be bound by all the provisions of the Articles of
Incorporation or Bylaws of the Fund and of any provisions in the
Registration Statement, Prospectus and SAI, as such may be amended
or supplemented from time to time, notice of which shall have been
given to the Underwriter, which at the time in any way require,
limit, restrict or prohibit or otherwise regulate any action on the
part of the Underwriter.
11. (a) The Fund shall indemnify, defend and hold
harmless the Underwriter, its officers and directors
and any person who controls the Underwriter within
the meaning of the 1933 Act, from and against any and
all claims, demands, liabilities and expenses
(including the cost of investigating or defending
such claims, demands or liabilities and any
attorney fees incurred in connection therewith)
which the Underwriter, its officers and directors or
any such controlling person, may incur under the
federal securities laws, the common law or otherwise,
arising out of or based upon any alleged untrue
statement of a material fact contained in the
Registration Statement or any related Prospectus and/
or SAI or arising out of or based upon any alleged
omission to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading.
Notwithstanding the foregoing, this indemnity
agreement, to the extent that it might require
indemnity of the Underwriter or any person who is an
officer, director or controlling person of the
Underwriter, shall not inure to the benefit of the
Underwriter or officer, director or controlling
person thereof unless a court of competent juris-
diction shall determine, or it shall have been
determined by controlling precedent, that such
result would not be against public policy as
expressed in the federal securities laws and in no
event shall anything contained herein be so
construed as to protect the Underwriter against any
liability to the Fund, the Directors or the Fund's
shareholders to which the Underwriter would
otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the
performance of its duties or by reason of its
reckless disregard of its obligations and duties
under this Agreement.
This indemnity agreement is expressly
conditioned upon the Fund's being notified of
any action brought against the Underwriter, its
officers or directors or any such controlling person,
which notification shall be given by letter or by
telegram addressed to the Fund at its principal
address in Denver, Colorado and sent to the Fund by
the person against whom such action is brought within
ten (10) days after the summons or other first legal
process shall have been served upon the Underwriter,
its officers or directors or any such controlling
person. The failure to notify the Fund of any such
action shall not relieve the Fund from any liability
which it may have to the person against whom such
action is brought by reason of any such alleged
untrue statement or omission otherwise than on
account of the indemnity agreement contained in this
paragraph. The Fund shall be entitled to assume the
defense of any suit brought to enforce such claim,
demand, or liability, but in such case the defense
shall be conducted by counsel chosen by the Fund and
approved by the Underwriter, which approval shall
not be unreasonably withheld. If the Fund elects
to assume the defense of any such suit and retain
counsel approved by the Underwriter, the
defendant or defendants in such suit shall bear the
fees and expenses of an additional counsel obtained
by any of them. Should the Fund elect not to assume
the defense of any such suit, or should the
Underwriter not approve of counsel chosen by the
Fund, the Fund will reimburse the Underwriter, its
officers and directors or the controlling person
or persons named as defendant or defendants in
such suit, for the reasonable fees and expenses of
any counsel retained by the Underwriter or them. In
addition, the Underwriter shall have the right to
employ counsel to represent it, its officers and
directors and any such controlling person who may be
subject to liability arising out of any claim in
respect of which indemnity may be sought by the
Underwriter against the Fund hereunder if in the
reasonable judgment of the Underwriter it
is advisable for the Underwriter, its officers and
directors or such controlling person to be
represented by separate counsel, in which event
the reasonable fees and expenses of such separate
counsel shall be borne by the Fund. This
indemnity agreement and the Fund's representations
and warranties in this Agreement shall remain
operative and in full force and effect and shall
survive the delivery of any of the Shares as provided
in this Agreement. This indemnity agreement shall
inure exclusively to the benefit of the
Underwriter and its successors, the Underwriter's
officers and directors and their respective estates
and any such controlling person and their successors
and estates. The Fund shall promptly notify the
Underwriter of the commencement of any litigation or
proceeding against it in connection with the
issue and sale of the Shares.
(b) The Underwriter agrees to indemnify, defend
and hold harmless the Fund, its Directors and any
person who controls the Fund within the meaning of
the 1933 Act, from and against any and all claims,
demands, liabilities and expenses (including the
cost of investigating or defending such claims,
demands or liabilities and any attorney fees
incurred in connection therewith) which the Fund,
its Directors or any such controlling person may
incur under the Federal securities laws, the common
law or otherwise, but only to the extent that
such liability or expense incurred by the Fund, its
Directors or such controlling person resulting from
such claims or demands shall arise out of or be
based upon (a) any alleged untrue statement of a
material fact contained in information furnished in
writing by the Underwriter to the Fund
specifically for use in the Registration Statement
or any related Prospectus and/or SAI or shall arise
out of or be based upon any alleged omission to state
a material fact in connection with such information
required to be stated in the Registration Statement
or the related Prospectus and/or SAI or necessary to
make such information not misleading and (b) any
alleged act or omission on the Underwriter's part
as the Fund's agent that has not been expressly
authorized by the Fund in writing.
Notwithstanding the foregoing, this indemnity
agreement, to the extent that it might require
indemnity of the Fund or any Director or controlling
person of the Fund, shall not inure to the benefit
of the Fund or Director or controlling person
thereof unless a court of competent jurisdiction
shall determine, or it shall have been determined
by controlling precedent, that such result would
not be against public policy as expressed in the
federal securities laws and in no event shall
anything contained herein be so construed as to
protect any Director of the Fund against any
liability to the Fund or the Fund's shareholders
to which the Director would otherwise be subject by
reason of willful misfeasance, bad faith or gross
negligence or reckless disregard of the duties
involved in the conduct of his office.
This indemnity agreement is expressly
conditioned upon the Underwriter's being notified
of any action brought against the Fund, its
Directors or any such controlling person, which
notification shall be given by letter or telegram
addressed to the Underwriter at its principal
office in Denver, Colorado, and sent to the
Underwriter by the person against whom such action is
brought, within ten (10) days after the summons or
other first legal process shall have been served
upon the Fund, its Directors or any such controlling
person. The failure to notify the Underwriter of
any such action shall not relieve the
Underwriter from any liability which it may have to
the person against whom such action is brought
by reason of any such alleged untrue statement or
omission otherwise than on account of the indemnity
agreement contained in this paragraph. The
Underwriter shall be entitled to assume the defense
of any suit brought to enforce such claim, demand, or
liability, but in such case the defense shall be
conducted by counsel chosen by the Underwriter and
approved by the Fund, which approval shall not be
unreasonably withheld. If the Underwriter elects
to assume the defense of any such suit and retain
counsel approved by the Fund, the defendant or
defendants in such suit shall bear the fees and
expenses of an additional counsel obtained by any
of them. Should the Underwriter elect not to
assume the defense of any such suit, or should the
Fund not approve of counsel chosen by the
Underwriter, the Underwriter will reimburse the
Fund, its Directors or the controlling person or
persons named as defendant or defendants in such
suit, for the reasonable fees and expenses of any
counsel retained by the Fund or them. In addition,
the Fund shall have the right to employ counsel to
represent it, its Directors and any such controlling
person who may be subject to liability arising out of
any claim in respect of which indemnity may be
sought by the Fund against the Underwriter hereunder
if in the reasonable judgment of the Fund it is
advisable for the Fund, its Directors or such
controlling person to be represented by separate
counsel, in which event the reasonable fees and
expenses of such separate counsel shall be borne
by the Underwriter. This indemnity agreement and
the Underwriter's representations and warranties
in this Agreement shall remain operative and in full
force and effect and shall survive the delivery of
any of the Shares as provided in this Agreement.
This indemnity agreement shall inure exclusively
to the benefit of the Fund and its successors, the
Fund's Directors and their respective estates and
any such controlling person and their successors
and estates. The Underwriter shall promptly
notify the Fund of the commencement of any
litigation or proceeding against it in connection
with the issue and sale of the Shares.
12. The Fund will pay or cause to be paid (a) expenses
(including the fees and disbursements of its own counsel) of any
registration of the Shares under the 1933 Act, as amended, (b)
expenses incident to the issuance of the Shares, and (c) expenses
(including the fees and disbursements of its own counsel) incurred
in connection with the preparation, printing and distribution of the
Fund's Prospectuses, SAIs, and periodic and other reports sent to
holders of the Shares in their capacity as such. The Underwriter
shall prepare and provide necessary copies of all sales literature
subject to the Fund's approval thereof.
13. This Agreement shall become effective as of the date it is
approved by a majority vote of the Directors of the Fund, as well as
a majority vote of the Directors who are not "interested persons"
(as defined in the Investment Company Act) of the Fund, and shall
continue in effect for an initial term expiring February 28, 1998,
and from year to year thereafter, but only so long as such
continuance is specifically approved at least annually (a)(i) by a
vote of the Directors of the Fund or (ii) by a vote of a majority of
the outstanding voting securities of the Fund, and (b) by a vote of
a majority of the Directors of the Fund who are not "interested
persons," as defined in the Investment Company Act, of the Fund cast
in person at a meeting for the purpose of voting on this Agreement.
Either party hereto may terminate this Agreement on any
date, without the payment of a penalty, by giving the other party at
least 60 days' prior written notice of such termination specifying
the date fixed therefor. In particular, this Agreement may be
terminated at any time, without payment of any penalty, by vote of a
majority of the members of the Directors of the Fund or by a vote of
a majority of the outstanding voting securities of the Fund on not
more than 60 days' written notice to the Underwriter.
Without prejudice to any other remedies of the Fund
provided for in this Agreement or otherwise, the Fund may terminate
this Agreement at any time immediately upon the Underwriter's
failure to fulfill any of the obligations of the Underwriter
hereunder.
14. The Underwriter expressly agrees that, notwithstanding
anything to the contrary herein, or in any applicable law, it will
look solely to the assets of the Fund for any obligations of the
Fund hereunder and nothing herein shall be construed to create any
personal liability on the part of any Director or any shareholder
of the Fund.
15. This Agreement shall automatically terminate in the event
of its assignment. In interpreting the provisions of this Section
15, the definition of "assignment" contained in the Investment
Company Act shall be applied.
16. Any notice under this Agreement shall be in writing,
addressed and delivered or mailed, postage prepaid, to the other
party at such address as such other party may designate for the
receipt of such notice.
17. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in
writing signed by the Fund and the Underwriter and, if applicable,
approved in the manner required by the Investment Company Act.
18. Each provision of this Agreement is intended to be
severable. If any provision of this Agreement shall be held illegal
or made invalid by a court decision, statute, rule or otherwise,
such illegality or invalidity shall not affect the validity or
enforceability of the remainder of this Agreement.
19. This Agreement and the application and interpretation
hereof shall be governed exclusively by the laws of the State of
Colorado.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this
Agreement to be executed on its behalf by an officer thereunto duly authorized
and the Underwriter has caused its corporate seal to be affixed as of the day
and year first above written.
INVESCO DYNAMICS FUND, INC.
ATTEST:
By:/s/ Xxx X. Xxxxxx
--------------------
Xxx X. Xxxxxx
President
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
Secretary
INVESCO FUNDS GROUP, INC.
ATTEST:
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx X. Xxxxxx
Senior Vice President
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
Secretary
